Borough of Littlestown, PA Chapter 88 Records

[HISTORY: Adopted by the Borough Council of the Borough of Littlestown as indicated in article histories. Amendments noted where applicable.]

Article I Open Records Policy

[Adopted 3-10-2009 by Ord. No. 635 (Ch. 49 of the 1994 Code)]

§ 88-1 Purposes.

The purposes of this chapter are to implement the provisions of Act 3 of 2008, the Pennsylvania Right-to-Know Law (the "Act"), as amended,[1] as well as the regulations and policies of Pennsylvania's Office of Open Records (the "Office of Open Records") [http://openrecords.state.pa.us], as from time to time promulgated and amended; to provide access to public records of the Borough of Littlestown (the "Borough") in accordance with the provisions of the Act and the regulations and policies of the Office of Open Records, as from time to time amended and promulgated; and to preserve the integrity and security of the Borough's public records. To those ends, the provisions of the Act, as amended, as well as the regulations and policies of the Office of Open Records, as from time to time promulgated and amended, are incorporated herein by reference, which Act and Office of Open Records regulations and policies shall prevail in the event of any inconsistency or conflict with the provisions of this chapter.

[1] Editor's Note: See 65 P.S. § 67.101 et seq.

§ 88-2 Open records policy.

It is the policy of the Borough to comply with the dictates of the Act that all records of the Borough are open and accessible, both for viewing and copying, unless closed (exempted) under the provisions of the Act, other statute(s) or judicial interpretation, and that the burden of proving that a Borough record is nonpublic or that an exemption applies is on the Borough in denying access/disclosure; provided, however, that the presumption of access shall not apply to Borough records that are: protected by a privilege (e.g., attorney-client, doctor-patient); exempt from disclosure under federal or state law; or exempt under Section 708 of the Act.[1] It shall also be the policy of the Borough to require the presence of a designated employee when public records are examined and inspected, and to charge and collect reasonable fees for duplication of public records of the Borough, as established, from time to time, by the Office of Open Records. The Borough hereby designates the Littlestown Borough Manager as the Borough's Open Records Officer, responsible for assuring compliance with the Act, as amended, as well as the regulations and policies of the Office of Open Records, as from time to time promulgated and amended, in accordance with the following:

A. The Borough Manager may designate, in writing, certain employee(s) to process public record requests, which designation shall be posted in the Borough Office.

B. The Borough Manager shall be responsible for minimizing, whenever and wherever possible, the financial impact upon the Borough regarding the resources utilized in the receipt and processing of public record requests and the retrieval, photocopying and forwarding of such public records to the requester.

C. The Borough's public records shall be accessible for inspection and duplication during the regular business hours of the Borough Office. A requester shall make a request to inspect or for the duplication of the Borough's records in person at the Borough Office, or by mail, or by facsimile or by e-mail. All requests for public records of the Borough under this policy shall identify or describe the records sought with sufficient specificity so that the Borough can determine which records a requester seeks and must include the name and address to which the Borough should address its response. The requester shall not be asked or required to tell the Borough why he/she wants a particular Borough record, except as otherwise required by the Act, nor shall he/she be asked or required to explain how he/she intends to use the record, except where permitted by some other law other than the Act. All requesters shall be informed of and provided with the Borough's public records request form, and other forms prescribed by the Act, which forms shall comport with those issued by the Office of Open Records. Although a requester shall not be required to utilize/submit his/her request on an official form, all requests must comply with the provisions of the Act and this subsection. It shall be the policy of the Borough to not comply with any verbal (unless the requester appears in person during normal business hours at the Borough Office) or anonymous request for the Borough's public records; further, a requester must make a written request if he/she plans to seek the remedies provided for in the Act in the event of the denial by the Borough of his/her request. In no case shall the Borough be required to create a public record which does not exist or to compile, maintain, format or organize a public record in a manner in which the Borough does not currently compile, maintain, format or organize the public record. The following information shall be posted, in written form, at the Borough Office and on the Borough's website: contact information for the Borough's Open Records Officer; contact information for the Open Records Office or other applicable appeals officer; the Borough's open records request form; and regulations, policies and procedures of the Borough relating to the Act and the regulations and policies of the Open Records Office, including, without limitation, this article, as amended. The Borough's Open Records Officer, or his/her designated Borough staff member, shall receive requests for public records of the Borough; direct such requests to the appropriate person(s); track the Borough's progress in responding to the request; and issue interim and final written responses to such requests. The Borough's Open Records Officer shall comply with the Act's tracking obligations regarding requests for Borough records, including, without limitation, documenting the date of receipt of all requests, computing the due date for the Borough's response, and maintaining records for certain time periods, as prescribed in the Act and/or the regulations and policies of the Open Records Office.

D. The Borough shall make a good faith effort to determine whether a requested record is a public record, and shall respond to all requests as promptly as possible, and, in no event, later than as more specifically specified hereinbelow and in the Act. The Borough's Open Records Officer shall facilitate a reasonably prompt response to all requests for Borough public records; however, in no case shall the Borough be expected or required to provide extraordinary Borough staff time and effort to respond to any request, but will respond in a manner consistent with the Borough's administrative responsibilities and capabilities, and consistent with the requirements of the Act.

E. The Borough shall respond in writing to the requester within five business days from the date of receipt of a request for the Borough's records. If the Borough does not respond within five business days of its receipt thereof, the request shall be deemed denied.

F. The Borough's Open Records Officer shall have the discretion to release Borough records that are exempt under Section 708 of the Act[2] if:

(1) Disclosure is not prohibited by some other law or by court order;

(2) The record is not protected by a privilege; and

(3) The Borough's Open Records Officer determines that the public interest in disclosure outweighs any need for confidentiality/non-access.

[2] Editor's Note: See 65 P.S. § 67.708.

G. The Borough shall respond to any request for the Borough's records, as aforesaid, by:

(1) Providing access to or copies of the records (or parts of them);

(2) Requesting an extension of time within which to respond [which final response shall be made in writing within no more than 30 days of the date of the Borough's request for such extension of time to review and/or respond to the request], which request for an extension of time must be made in writing to a requester within the five business days of the Borough's receipt of the request; and/or

(3) Issuing a written denial, which must include:

(a) A description of the record requested;

(b) The specific reasons for the denial, including a citation of supporting legal authority;

(c) The name, title, address, telephone number, and signature of the Open Records Officer who issued the denial;

(d) The date of the response; and

(e) The procedure to appeal the denial.

H. In the event that the estimated/anticipated cost of fulfilling a request will exceed $100, the requester's prepayment of any and all fees/costs shall be required. The Borough's schedule of fees related to the Act shall comport with the regulations and requirements of the Open Records Office, and shall include postage (actual cost only) and reasonable certification fees, wherein certification of the Borough records involved is requested by the requester. No fee may be imposed/collected by the Borough for its review of a record to determine whether the record is subject to access/disclosure under the Act.

I. If a request is being reviewed, the notice of such review from the Borough shall be provided to the requester within five days of the Borough's receipt of the request, as aforesaid, shall be in writing, and shall include the reason for the review and the expected final response date, which shall be within no more than 30 days of the notice of review. If the Borough does not respond within such thirty-day period, the request is deemed denied.

(1) Review of requests for Borough records shall be limited to situations wherein:

(a) The record requested contains information which is subject to disclosure/access, as well as information which is not subject to access that must be redacted prior to a grant of access/disclosure; the redacted information shall be considered a denial as to that information;

(b) The record requires retrieval of documents that are stored in a remote location;

(c) Timely response cannot be accomplished due to bona fide and specified staffing limitations;

(d) Legal review is necessary to determine whether the record requested is a public record;

(e) The requester has failed to comply with the Borough's policy and procedure requirements regarding access to the Borough's records;

(f) The requester refuses to pay the applicable fees; or

(g) The extent or nature of the request precludes a response within the required time period.

(2) Upon a determination that one of the factors listed above applies, the Borough shall send written notice to the requester within five business days of receipt of the request for access, as aforesaid. The notice shall include a statement notifying the requester that the request for access is being reviewed, the reason for the review, a reasonable date that a response is expected to be provided and an estimate of applicable fees owed when the record becomes available. If the date that a response is expected to be provided is in excess of 30 days, following the five business days allowed therefor, the request for access shall be deemed denied unless the requester has agreed in writing to an extension to the date specified in the notice. If the requester agrees to the extension, the request shall be deemed denied on the day following the date specified in the notice if the Borough has not provided a final, written response by that date.

J. If a request for access to/disclosure of a Borough record is denied or deemed denied, the requester may file an appeal with the Office of Open Records within 15 business days of the mailing date of the Borough's notice of denial, or within 15 days of a deemed denial. The appeal shall state the grounds upon which the requester asserts that the record is a public record and shall address any grounds stated by the Borough for delaying or denying the request.

K. The Borough may deny access/disclosure to a requester if a requester has made repeated requests for the same Borough record and the repeated requests have placed an unreasonable burden upon the Borough. A denial based upon a disruptive request shall not restrict a requester's ability to request a different Borough record.

L. The Borough must make a record available in the medium requested by the requester if the record exists in that medium; otherwise, the Borough must make the record available in the medium in which it exists at the time of the receipt of the request. In addition, the Borough can make its public records available through any publicly accessible electronic means; thus, in addition to responding to a request for Borough records in accordance with the foregoing provisions of this section, the Borough may respond to a request by notifying the requester that a document is available through publicly accessible electronic means or that the Borough will provide access electronically. The provisions of the Act will be applicable and shall be complied with by the Borough in the event that the requester is unable or unwilling to access such a record electronically. If a record is maintained by the Borough electronically only, the Borough shall make a paper copy available if so requested by the requester. If a Borough record is only maintained electronically or in other non-paper media, duplication fees shall be limited to the lesser of the fee for duplication on paper or the fee for duplication in the record's native media (although the requester may request the more expensive medium).

[1] Editor's Note: See 65 P.S. § 67.708.